Excerpt: - .....of a connected suit. original suit no. 78 of 1919). the subordinate judge had dismissed the suit and latchamma appeals.3. the question for determination is whether when the three sisters made their agreement they cut off the right of survivorship among themselves. the only evidence of the agreement is the statement of latchamma as plaintiff's first witness:we effected a division arranging that this property should be enjoyed according to the desire of each. since then each of us was enjoying our respective shares of property with full right, that is to say, with the right of alienation by sale, etc.4. the munsiff who recorded this statement did not address his mind to its significance. he confines himself to the question whether before this agreement chellamma was bequeathed.....

Judgment:

Jackson, J.

1 This appeal is from the decree of the Court of the Subordinate Judge of Kistna at Bllore in Appeal Suit No. 210 of 1921, preferred against the decree of the Court of the Additional District Munsiff of Tanuku, in Original Suit No. 79 of 1919.

2. One Venkanna died leaving three daughters. They came to an oral agreement by which Latchamma and Atchamma each took three acres of his property and Chellamma 5 acres and odd. Chellamma has died and her share is in the possession of her step-son, first defendant. Latchamma, claiming a right as survivor of Chellamma, sues for Chellamma'a share (she has sold 1-80 acres which are subject of a connected suit. Original Suit No. 78 of 1919). The Subordinate Judge had dismissed the suit and Latchamma appeals.

3. The question for determination is whether when the three sisters made their agreement they cut off the right of survivorship among themselves. The only evidence of the agreement is the statement of Latchamma as plaintiff's first witness:

We effected a division arranging that this property should be enjoyed according to the desire of each. Since then each of us was enjoying our respective shares of property with full right, that is to say, with the right of alienation by sale, etc.

4. The Munsiff who recorded this statement did not address his mind to its significance. He confines himself to the question whether before this agreement Chellamma was bequeathed absolute rights by her father Venkanna.

5. Contrariwise the learned Subordinate Judge does not decide the Question of the Will, but confines himself to the agreement. He finds that the sisters intended to destroy their rights of survivorship, and having regard to the language used by Latchamma I am not prepared to hold that he is wrong. 'Full right with the right of alienation by sale, etc.' must, I think, mean that the right of survivorship was destroyed; and Latchamma when she conveyed her share to first defendant's father, seems to have held the same view. The defendant put the point quite clearly in his defence statement, paragraph 5; 'it was arranged that each party should enjoy without any right of survivorship.' Each case must be interpreted according to the language employed whether written or oral; and not much is to be gained by examining analogous rulings. It is laid down in Comathi Ammal v. Kupputhayi Animal : (1904)14MLJ175 , that there must be apt language. In that case as the sisters imagined that they had all along an absolute estate it was held that they could not have intended to destroy the right of survivorship. In this case (assuming that Chellamma had no absolute right under Venkanna's Will) the sisters did not imagine that they were dividing an absolute estate. In Alamelu Ammal v. Balu Ammal 43 Mad. 849 the sisters made an oral partition purporting to take their respective shares absolutely and it was held that they had relinquished their right of survivorship.

6. In Rukmani Ammal v. Narasimha Chariar A.I.R. 1924 Mad. 696 the phrase is 'the only relationship between us is one of friendship not of property.' Such a phrase was not used in the present case but it is not an essential formula. I find that the right to survivorship was destroyed by the agreement. No other point was raised on appeal or appears to be valid. The second appeal is dismissed with costs.